Murder and Manslaughter

Murder and Manslaughter

  1. Are you charged with Murder? Manslaughter?
  2. What happens when you are charged with these offences?
  3. What is the difference between Murder and Manslaughter?

If a person is found guilty of murder or manslaughter, they may be liable to imprisonment for life: s. 279, s. 280 Criminal Code Act Compilation 1913 (“Criminal Code”)Both of these charges are serious offences.If you suspect that you are under investigation, or if you have been charged with one of these offences, you should contact our lawyers at WN Legal immediately so we can guide you through this process and advise you of your legal rights.

What is Murder? And what does the prosecution need to prove?

Under the Criminal Code the prosecution needs to prove that:

  1. The accused caused the death of the victim;
  2. There was intent to kill or intent to cause grievous bodily harm (note, that it is immaterial if you did no intent to hurt the person killed); and
  3. There was no authorisation, excuse or justification in the law for the death.

What does the prosecution need to prove for a manslaughter charge?

Under the Criminal Code the prosecution needs to prove that:

  1. The circumstances are such that you caused the death of the victim, but the offence does not meet the elements of murder.
  2. There was no authorisation, excuse or justification in the law for the death.

What is the difference between Murder and Manslaughter?

The main difference between the two, is the element of fault.  For manslaughter the prosecution considers if you have been negligent or reckless.  For murder, the prosecution will look at what you intended to do.  

Who has the onus of proof in court?

In general, you are presumed innocent until you have been proven guilty, or have admitted guilt.  For all offences under the Criminal Code, the onus of proof rests with the prosecution to prove that you committed the crime, beyond a reasonable doubt.  However, in some circumstances where the burden is on you to prove something, the standard of proof is at a lower standard on the ‘balance of probabilities’.  If you have a defence to the charges, then the burden rests upon you to prove this (ie with evidence).

What is a Defence?

A defence justifies your conduct or gives you an excuse as to why your conduct was not unlawful.  Below are some defences which may apply to your circumstances:

  1. You have an alibi at the time the offence was committed;
  2. Self Defence;
  3. Automatism;
  4. Mental Illness; or
  5. Duress.

Each of these defences have different elements which need to be satisfied. The burden is on you to provide the evidence to prove, ‘on the balance of probabilities’ that this defence applies.

Can I claim that I did not know the law?

It should be noted that you cannot claim that you did not know the law, since ignorance is not a defence which can be used.

For more information regarding the defences you can use, and the evidence you to establish these defences, we recommend that you see one of our Perth Criminal Lawyers at WN Legal in order to obtain further legal advice and guidance on this matter.

I’m charged for a ‘one punch’ offence under the Criminal Code.  What does the prosecution have to prove?  How does this charge differ from Manslaughter?
  1. Under the s. 281 of the Criminal Code, the prosecution has to prove the following:
    1. that you unlawfully assaulted a person; and
    2. the person dies as a direct/indirect result of the assault which was neither foreseen nor reasonably foreseeable.
  2. This offence differs from manslaughter since the death was not foreseeable. If the death was reasonably foreseeable or foreseeable then this would be classified as Manslaughter.
  3. If found guilty of this offence, you could be liable of imprisonment for 10 years.

What are my rights with the police if they arrest me?

After your arrest, as soon as possible, the officer in charge must tell you what rights you have.  These rights will differ depending on the reasons of your arrest (if you are being questioned as a suspect or not).

In circumstances where you are arrested you have a right to:
  1. Reasonable privacy from the media
  2. Necessary medical treatments
  3. Reasonable chance to contact a friend or relative to let them know where you are
  4. If you cannot understand English or cannot communicate, an interpreter or qualified person who can communicate on your behalf.
If you are arrested as a suspect, you have a right to:
  1. Be informed of the offences that you have been suspected of committing
  2. Have a reasonable chance to contact a lawyer
  3. Have an interpreter with you in your interview
  4. Be informed that you are being questioned as a suspect.

I have been brought in for questioning. Do I have to answer the police questions?

You do not have to participate in a Video Recorded Interview and generally, you have a right to silence, and you do not have to answer questions from the police.  However, there are some exceptions to this.  The police should make it clear when the law requires you to provide an answer.  There are some questions that you must answer, these include:

  1. Name
  2. Address
  3. Date of Birth

If it is requested, you do have to submit to fingerprinting, being photographed and DNA sampling.  If you have been brought in for questioning by the police, we recommend that you contact WN legal so we can advise you on which questions you must answer and those you can refuse. We will also advise you of your legal rights.

What are the costs involved?

At WN Legal, we do not “bill by the hour” and render an expensive invoice upon completion of our legal services. We will provide a reasonable estimate and endeavour to bill within the confines of our estimate, even if we are required to do extra work. At WN Legal, it is the quality of service and results that we pride ourselves on. Our Perth Criminal Lawyers are passionate and client focused in helping you achieve excellent results without expending unnecessary legal costs.

Please do not hesitate to contact WN Legal if you require legal assistance in this area of law. Our Perth Criminal Lawyer Jun Khew Wong, has a broad range of experience in assisting his clients in applying and defending a variety of Criminal matters.